What are the Alternative forms of Dispute Resolution and what is the essential difference between these and arbitration?

10 April 2013

ADR is Alternative Dispute Resolution. This is a term with a very wide definition and covers any form of dispute resolution, other than through Court process. Strictly speaking the term “alternative” may be something of a misnomer.Essentially there are two forms of dispute resolution; one which imposes a decision and determines issues definitively and another which provides the basis to help the parties reach an agreed solution or settlement. The first form includes expert determination, adjudication, private judging and baseball arbitration. Once the mechanism is agreed upon neither party can unilaterally withdraw from the process, but can still settle the disputes themselves. If not, then a binding determination will be made, which in principle is enforceable through the courts.

The second form includes negotiation, mediation/ conciliation, mediation/ arbitration, mini trial/ executive appraisal and neutral listener arrangements. All of the above mechanisms require the parties to conclude the settlement agreement between themselves. These procedures aim to bring the parties closer to understand the respective position of the other side and to help the parties see the weakness of their own case. This should in principle with or without the assistance of a third party, enable the parties to agree the terms for the settlement of their differences. If no agreement is possible, the parties can resort to arbitration or the courts for the determination of their dispute.

It can be argued as mentioned above that Arbitration falls within the broad umbrella of ADR. But, in reality it is not easy to distinguish arbitration from ADR means, since the latter occur in many diverse forms. Academics attempted to define arbitration in relation to ADR, the former being a mean of dispute resolution through a binding award made by private judges especially appointed for the dispute in question, while the latter are any other proceedings not coming within the first definition.

Moreover, arbitration has more in common with litigation than the other forms of ADR. Comparing litigation and arbitration the similarities are obvious: there are two (and perhaps more) adversaries, there is generally a formal process for the exchange of pleadings, disclosure of documents, service of witness reports and expert reports. If necessary, parties can be compelled to comply. In each case the process culminates with one or more hearings.At the conclusion of the hearing or hearings there will be some form of determination on the issues, which remain live between the parties. Generally there will be one winner and one (or perhaps more) losers. A number of consequences will flow from that determination, notably in terms of who bears the costs or a large part of the costs of the whole process.